Environmental and watchdog groups have long criticized the Texas Commission on Environmental Quality for taking it too easy on polluters — and the TCEQ has often countered that its job is to coax industrial facilities into compliance rather than slap them with big fines.
But on Wednesday, agency officials openly acknowledged that a proposed fine against Texas Petroleum Chemicals Group, known as TPC — the Houston-based company whose Port Neches chemical plant exploded last month — for more than a half-dozen unrelated violations that occurred in 2018 wasn't high enough and that its general enforcement approach may not be stringent enough.
In a unanimous vote, the agency's three commissioners rejected a fine against TPC that had been whittled down to $22,302 and kicked it back to agency staff, asking that the executive director refer the cases to the Texas Attorney General's Office for "comprehensive enforcement action" — a move that will presumably result in a more stringent penalty and could result in a criminal investigation.
The proposed fine covered eight separate violations the TCEQ found at TPC's Port Neches plant in 2018 that mostly involved preventable emissions of hazardous air pollutants, including thousands of pounds of highly explosive 1,3 butadiene.
"When these violations occurred in 2018, I think the executive director calculated the penalty appropriately," Commissioner Emily Lindley said before the vote. "But we're here today and there have been recent events, and we have to take those events seriously."
The vote came after commissioners heard powerful testimony from Port Neches-area residents who described their experiences during the fire that broke out the day before Thanksgiving last month at the TPC plant, sparking two explosions and widespread mandatory evacuations.
Fred Vernon, 31, recalled abandoning yams and turkey in the kitchen and grabbing his 4-month-old daughter from her baby swing as his family hastily left the house. Shortly after they stepped outside, he said, the infant started vomiting even though they had thrown a blanket over her head. Vernon said he later started vomiting himself.
"The stories like that go on and on for families around southeast Texas," said Vernon, who was born and raised in Port Arthur and moved into a house 2.5 miles away from the TPC facility a year ago. "I speak for myself. I believe I speak for my community."
He and other residents and representatives from environmental and watchdog groups urged commissioners to pursue stiffer penalties against TPC, which has a long history of environmental violations. They also urged the agency to consider overhauling its entire approach to environmental enforcement by expediting penalties and increasing a $25,000-per-day violation cap, which the agency has applied even to near-miss events that could have resulted in major explosions. Environmental groups have long argued that the agency has the authority to penalize companies that amount for every pollutant released during an emissions event, which it seemingly never does.
Commissioner Bobby Janecka said he agreed that it generally takes the agency too long to penalize companies — some of the violations discussed Wednesday occurred almost two years ago — and noted that stakeholders familiar with the petrochemical industry had told him that "smaller events often precipitate a larger one."
Because of that, he said he was convinced that the state needed "to consider whether these [2018] violations had any potential causal change or suggested a pattern."
Even as he advocated for commission approval of the proposed fine, Vic McWherter — the agency's public interest counsel — said before the vote that he was "confident that those thoughts and observations about the penalty policy and statutory caps ... will be considered by everyone here going forward." He also thanked residents for traveling all the way to Austin to share their stories.
Adrian Shelley, director of the Texas office of the nonprofit organization Public Citizen and a former executive director of Air Alliance Houston, said he was amazed by the commission's rejection of the proposed fine and its request to commission Executive Director Toby Baker to refer the cases to the Attorney General's Office.
"I'm really pleased," he said. "I have never seen ... them call an audible like that in the last moments. I would like to believe that it is indicative of a changing approach."
It's unclear whether Baker will send the case to Attorney General Ken Paxton. But in the wake of the TPC event, Baker issued a strongly worded statement condemning what he described as "an unacceptable trend of significant incidents impacting the Gulf Coast region."
"While not all emergency events may be prevented, it is imperative that industry be accountable and held to the highest standard of compliance to ensure the safety of the state’s citizens and the protection of the environment," he said.
Although evacuation orders have been lifted, local and state agencies are still overseeing cleanup and repairs at the chemical plant. An update Wednesday said, "Response efforts are focused on activities to secure site equipment and minimize impact to environment, while preserving the safety of emergency responders and the community."
Wednesday's commission vote came the same day that Environment Texas' Research and Policy Center released its annual report of unauthorized air pollution in the state, which is based on an analysis of state enforcement data and reports that industrial facilities must file with the state when they emit more air pollution than allowed under their government-issue air permits.
It found that TCEQ fined only 57 so-called "emissions events" last year, some of which occurred before 2018. That's compared with the 4,590 emissions events that occurred throughout the year.
It also found that TPC's Port Neches facility was the second-highest unauthorized emitter of butadiene in the state, having spewed 14,881 pounds of the cancer-causing gas beyond its permit limits.
“Texans are sick and tired of oil refineries and petrochemical plants catching fire, exploding, and pumping out harmful pollution,” Catherine Fraser, a clean air associate with the research center, said in a statement. “We need our state leaders to crack down on illegal pollution, and stop putting the interests of polluters over the rest of us."
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